In the US, the ACLU was first off the mark (11 June) in filing a constitutional challenge against the NSA's telephone surveillance orders. "The crux of the government's justification for the program is the chilling logic that it can collect everyone's data now and ask questions later," said Alex Abdo, a staff attorney for the ACLU's National Security Project. "The Constitution does not permit the suspicionless surveillance of every person in the country."
Yesterday, Wired reported that EPIC has asked the Supreme Court to stop the NSA program. "EPIC, a non-profit based in Washington, D.C., argues in its petition that there is no alternative court to review a secret court’s order — disclosed by the Guardian last month — requiring Verizon to forward all calling metadata to the National Security Agency." But Wired notes that these challenges face an uphill battle. "Last year, for example, a federal appeals court ruled that the government may spy on Americans’ communications without fear of being sued."
In the UK, Privacy International yesterday commenced legal action against the UK government, "charging that the expansive spying regime is seemingly operated outside of the rule of law, lacks any accountability, and is neither necessary nor proportionate."
Eric King, head of research at Privacy International explained, "One of the underlying tenets of law in a democratic society is the accessibility and foreseeability of a law. If there is no way for citizens to know of the existence, interpretation, or execution of a law, then the law is effectively secret. And secret law is not law. It is a fundamental breach of the social contract if the Government can operate with unrestrained power in such an arbitrary fashion."
Bhatt Murphy Solicitors, acting for Privacy, added, "The UK authorities have been engaged in a regime of surveillance which amounts to a serious and unjustifiable violation of the rule of law: it breaches EU law, and it breaches the rights of the citizen to freedom of expression and privacy as protected by the Human Rights Act.”
Article 8 of the Human Rights Act states:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Proportionality with national security will be the crux. But it should also be noted that Home Secretary Theresa May said yesterday, "We must also consider our relationship with the European Court very carefully, and I believe that all options – including withdrawing from the Convention altogether – should remain on the table.”
Meanwhile, the European Parliament has announced that its "Civil Liberties Committee will conduct an 'in-depth inquiry' into the US surveillance programmes, including the bugging of EU premises and other spying allegations, and present its results by the end of this year." Parliament is in effect going behind the back of the national governments and the EC.
"It is absurd of EU leaders to simply point the finger at the US – where the people responsible had to explain themselves a few days ago to the US Congress – while nothing has been done in the EU yet. Every day that programs like ‘Tempora’ [GCHQ's fiber monitoring program] continue to run is a day where rule of law and fundamental rights are overridden," said MEP Jan Philipp Albrecht, a member of the LIBE committee and European Parliament rapporteur/draftsperson for the new EU data protection regulation. "Failure to provide an adequate response to these developments means jeopardising the EU's principles of democracy, justice and integrity,” he added.